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Federal ‘Ban-the-Box’ Bill Would Apply to Agencies, Contractors

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.

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​Legislation prohibiting federal agencies and federal contractors from asking about job applicants' criminal history until after making a conditional offer of employment appears on its way to a House vote.

A bipartisan group of lawmakers from the House Oversight and Reform Committee supported the Fair Chance Act during a hearing March 13.

The bill would apply to the executive, legislative and judicial branches, including the U.S. Postal Service. It would also apply to private-sector companies with federal contracts. Exceptions include law enforcement and national security positions, any roles requiring access to classified information, and jobs in regulated industries for which criminal-history information is required by law before an offer is made.

The legislation expands the prohibition to millions of federal contractors for the first time and codifies existing Office of Personnel Management policy at federal agencies. It also mandates that the agencies collect data on individuals with criminal records who are hired—information that has been lacking in the states that have enacted fair chance hiring reforms.

Thirty-three states and more than 150 cities and counties require ban-the-box policies for public-sector jobs, and laws in 11 states and 17 cities require private-sector employers to "ban-the-box"—a term that refers to the removal of the check box on job applications that applicants mark to indicate they have a criminal history. The laws are intended to give formerly incarcerated job applicants a fairer chance to attain employment.

"At a time when some studies show that as many as 1 in 3 American adults have a criminal record, we simply cannot afford to exclude this population from employment opportunities," said Holly Harris, executive director of the Justice Action Network, a Washington, D.C.-based organization advocating for criminal justice reform. "Fair chance hiring policies … at the very least ensure people with records have an opportunity to get their foot in the door and present their skills and qualifications before they have to disclose their criminal histories."

Supporters of ban-the-box laws say that being asked to disclose criminal history at the start of the hiring process often blocks applicants with criminal records from consideration. "Employers have a well-recognized reluctance to offer opportunities to formerly incarcerated people," said Teresa Hodge, co-founder of Mission: Launch and CEO of R3 Score, organizations working to create pathways to self-sufficiency and find jobs for people who were formerly incarcerated.

Hodge has experienced both sides of the issue, as a former HR professional who commonly used the criminal-history question to pare down the applicant pool for available jobs and as a former prisoner herself, convicted of a white-collar crime. In her job search after release from prison, she was disqualified from positions during the application process

Hodge said that when she worked in HR, she was asked to winnow down large applicant pools to "something more manageable. We looked for every possible way to discriminate. When we had the [criminal-history] information ahead of time, it was used," she said.

When she was released from prison in 2011, she experienced what it was like to be on the other side of that practice. Online applicant tracking systems stopped her progress with the message "Something you answered disqualified you for this job."

"In spite of all my knowledge of how human resources worked, it was that experience that made

me fully aware of the level of discrimination that I would be confronting in the job market," Hodge said. "This was my new reality."

Concerns Dismissed

Employers say they worry about not knowing the criminal histories of job candidates. Hodge stressed that ban-the-box laws do not "force anyone to hire anybody. Employers can continue running background checks and gathering all the information they need to make a hiring decision."

Both Harris and Hodge discounted recent studies suggesting that ban-the-box policies lead to broader race-based discrimination in hiring.

"That is not a concern of individuals with arrest and conviction records," Hodge said. "The concern we have is an opportunity to compete and fairness in the application process."

Rep. Jamie Raskin, D-Md., cited other studies that have found ban-the-box policies to be effective and said employers choosing to discriminate based on race in lieu of criminal history is a different issue. "It's like saying we shouldn't have a pregnancy discrimination act because some employers will say, 'Then we'll just discriminate on the basis of gender.' You can't use one form of discrimination to justify another form of discrimination."

Getting Talent Back to Work

Hodge said securing a job significantly reduces a former prisoner's chance of re-entering the criminal justice system. "Successful and holistic re-entry, which includes and prioritizes access to basic human needs such as housing, health care, education and employment, is vital for people attempting to transition away from and out of the criminal legal system."

The Society for Human Resource Management has partnered with many companies and other associations to launch the Getting Talent Back to Work initiative, pledge and toolkit to give applicants with criminal histories a second chance at employment.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.